29th March 2010

 

ACCESS TO JUSTICE FOR PEOPLE WITH A DISABILITY HAMPERED BY ANTIQUATED LAW – INCLUSION IRELAND

 Legislation dating back to 1871 is seriously hampering the right of people with an intellectual disability to access justice through the courts, says Inclusion Ireland. Inclusion Ireland is aware of cases where people with a disability have been denied access to justice because of their disability.  For example Laura’s case (see below), where she was allegedly sexually assaulted and the DPP brought forward a prosecution, but the judge deemed that she hadn’t the ‘capacity’ to testify in court.

Laura has Down Syndrome, and the judge assessed her capacity to testify and decided she was not ‘competent’, something her family and all close to her strongly disagree with. Laura’s mother Ann says “we always accepted Laura as equal within our home, but we realised that outside our four walls she wasn’t seen as an equal”.  

New legislation should ensure there are guidelines and definitions for ‘testing’ capacity. Current capacity legislation dates back to the Lunacy Act of 1871 and contains no guidelines for judges on how to decide if someone can testify in court, nor does it provide a definition of capacity for judges to work from.  

Modern legislation in this area is needed before Ireland can ratify the UN Convention on the Rights of Persons with Disabilities. Ireland was among the first countries to sign the Convention on the Rights of Persons with Disabilities on March 30th 2007. Then Justice Minister Michael McDowell said it would be ratified “as soon as possible”. Three years later we are still waiting.  Article 13 of the UN Convention says:

• States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

•  In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.

ENDS

Laura’s case:

“We as a family have experienced the archaic laws in Ireland regarding competency. Our daughter Laura has Down Syndrome and had a traumatic experience. She made a full competent statement about what had happened to her, and her sister who found the man, also made one. We went to the central criminal court in Dublin very nervous, little did we know. Laura was declared ‘incompetent’ after half an hour of questions that bore no relation to the case. Our world was devastated when the accused walked free and the competent young woman who was well able to tell her story was denied justice because she has Down Syndrome.

We desperately need clear laws on competency. There are cases out there every day, as we know from different reports where nothing is being done. Because of these laws the cases won’t get out of the DPP's office. If the records were checked, the number of cases that actually reached court are in single numbers.

We have been promised for years that the change is coming - its been four years for us. What are the government doing everyday as another abuser walks free?
Our record in Ireland for burying our head in the sand has been well recorded, now is the time to wake up and demanded the changes necessary, we are all equal, but not in Ireland.”

• Written by Laura’s mother, Ann

EVENT: Inclusion Ireland, Amnesty International Ireland and the School of Nursing and Midwifery at Trinity College Dublin are calling on the Government to urgently ratify the UN Convention on the Rights of Persons with Disabilities, and will hold a joint press conference on this issue on Tuesday 30th March 2010 at 1.30pm in the School of Nursing and Midwifery, D’Olier St., Dublin 2.       

GO TO WEBPAGE OF CAMPAIGN FOR MODERN CAPACITY LEGISLATION & RATIFICATION OF THE UN CONVENTION

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